The opinion of the court was delivered by: FULLAM
In a ten-count Indictment returned January 28, 1977, the defendant Herbert Fineman, then Speaker of the House of Representatives of the Pennsylvania General Assembly, was charged with violations of the Racketeer Influenced and Corrupt Organizations Statute, 18 U.S.C. § 1962(c), conspiracy, mail fraud, interference with a federal investigation, and obstruction of justice, all in connection with the alleged receipt of bribes for the use of his official influence to obtain favorable action upon applications for admission to certain graduate schools of state-supported universities.
The jury trial commenced May 9, 1977. Two counts of the Indictment were dismissed at the close of the Government's case. On May 20, 1977, the jury rendered its verdict, finding the defendant guilty on two counts of obstruction of justice, and not guilty on all remaining counts. Post-trial motions challenging the convictions were argued on May 31, 1977.
The RICO, conspiracy, and mail fraud counts rejected by the jury were based upon allegations that, on at least four occasions between 1970 and 1973, parents of students desiring to enroll in certain medical and veterinary schools paid large sums of money to one Martin Abrams, in order to obtain favorable action on the respective applications. The parents did not know what was to become of the money, except that it would be returned to them if the student in question was not admitted to the particular graduate school. Abrams testified that he paid most of the money to the defendant. The defendant denied ever receiving any money from Abrams or anyone else in connection with such applications. While admitting that, in each of the four instances, the defendant or some member of his staff had written a letter of recommendation to the graduate school in support of the application, the defense produced evidence to the effect that literally hundreds of such letters were written by the defendant or his staff, and that many other members of the legislature also wrote such letters, as a routine service to their constituents. The Government sought to establish that, in cases where the Government claimed the defendant was being paid, the letters of recommendation differed from the routine letters in their form, content, tone, or distribution.
However, the only direct evidence of payment to the defendant in these cases was the testimony of Abrams. When Abrams was first called before the Federal Grand Jury, he pleaded the Fifth Amendment. After being granted testimonial immunity, Abrams initially denied receiving any money from any of the parents, whereupon he was indicted for perjury, and entered a guilty plea to that charge. As part of a plea arrangement for a probationary sentence, and after being placed in a witness protection program because of alleged threats unconnected to the present case, Abrams again went before the Grand Jury, implicating the defendant and others, and testified as a Government witness at the defendant's trial. The reliability of his testimony was further undermined by his freewheeling admissions to a number of other criminal offenses, including bribery not involving the defendant, income tax evasion, false income tax returns, etc.; and by the fact that for several years he had enjoyed a standard of living involving expenditures seemingly in excess of his relatively modest earnings from legitimate pursuits.
The Government sought to bolster Abrams' credibility in this instance by proof of a conversation, recorded without Abrams' knowledge before he decided to cooperate with the Government, between Abrams and one Gagliardi, who was acting as a Government informant. In the course of that conversation, Abrams told Gagliardi that the defendant had been the recipient of large sums of money in connection with graduate school admissions, and discussed ongoing arrangements whereby the defendant was paying Abrams' legal fees.
In late March of 1976, the local office of the Federal Bureau of Investigation received a "tip" concerning Fineman's alleged involvement with medical school admissions. This information was turned over to the Office of the Special Prosecutor, a state agency which was then conducting an investigation of the matter. So far as the record discloses, there was no federal investigation until some time in June or July of 1976.
The defendant's convictions on Counts IX and X of the Indictment stemmed from his activities during 1976, when, according to the Government, he attempted to conceal from the Federal Grand Jury his involvement with the questioned transactions. In Count IX, the defendant was charged with causing a vice-president of the University of Pennsylvania, in August of 1976, to remove from the files and destroy a letter of recommendation written by the defendant on behalf of an applicant named Braunstein for admission to that university's School of Veterinary Medicine. In Count X, the defendant was charged with having, on various dates in November and December of 1976, urged one Harold Salkind, who had been subpoenaed to testify before the Federal Grand Jury, to withhold information from the Grand Jury concerning certain transactions involving admissions to the Philadelphia College of Osteopathic Medicine. The evidence as to each of these counts will now be summarized briefly:
As to Count IX, there was evidence from Abrams to the effect that he initially agreed not to implicate Fineman in exchange for the defendant's payment of Abrams' legal fees, and in the hope that the defendant would enable Abrams to "better himself" in the years ahead; and that he kept the defendant informed as to the nature of the Grand Jury's inquiries. The defendant, on the other hand, testified that his interpretation of his conversations with Abrams was that Abrams was threatening to implicate the defendant (falsely) unless the defendant paid $5,000 for Abrams' legal fees; that he refused to make any such payment; but that, as a result, he felt vulnerable to adverse publicity in the event Abrams carried out his veiled threats. Abrams had mentioned the names of two of the students, Conti and Braunstein, whose parents had paid Abrams large sums of money, and told the defendant that he, the defendant, was "involved" since he had written letters of recommendation for these men. The defendant thereupon promptly checked his office records, but could find no reference to Braunstein. He then asked his friend, E. Craig Sweeten, Vice-President of the University of Pennsylvania, to have the files of the veterinary school checked to see whether there was any such letter. Mr. Sweeten testified that the defendant met with him, told him that if there was a sponsoring letter for Braunstein it could be exceedingly embarrassing to the defendant, and requested Sweeten to cause any such letter to disappear, or words to that effect.
As it happened, the letter in question, which was in a rather forceful vein, was written on behalf of two students, Braunstein and a relative of the defendant. As a result of Mr. Sweeten's intervention at the defendant's request, the copy of the letter was removed from the Braunstein file and destroyed, but the original remained in the file of the other student, and was ultimately produced before the Federal Grand Jury in response to a subpoena, at which time the removal of the copy from the Braunstein file came to light.
With respect to Count X, there was evidence that one Harold Salkind, an accountant and a "consultant" to the President of the Philadelphia College of Osteopathic Medicine had, over a period of years, been active in obtaining large "donations" to the college from parents of students seeking admission there. He testified that he had channeled upwards of $200,000 to Dr. Barth, the deceased former president of the college, in this manner, and had kept upwards of $75,000 for himself over the years. He testified that he was friendly with the defendant's father, and also with the defendant, and that on two occasions in 1967 and 1968, the defendant had been involved in such transactions. Salkind further testified that on both occasions, pursuant to arrangements suggested by Dr. Barth, the defendant delivered to Salkind substantial sums of cash, on behalf of the parents of prospective students, and that in response to Salkind's inquiries, the defendant stated that he himself already had been "taken care of."
In addition, there was evidence of Salkind's involvement with more recent transactions with Abrams (but a dispute in the evidence as to how much money each man received). In late March of 1976, Salkind was subpoenaed to appear before a State Grand Jury. He mentioned that fact to the defendant during a chance encounter, and told the defendant that he planned to assert his Fifth Amendment privilege.
The new president of the Philadelphia College of Osteopathic Medicine, Dr. Rowland, testified that shortly thereafter the defendant asked him to obtain a list of students at the college for whom the defendant had written letters of recommendation. The defendant came to Rowland's office to obtain the list, and requested Rowland to destroy all such letters of recommendation from the defendant. According to Rowland, over a period of two or three months thereafter, Salkind, on several occasions, relayed to Rowland the defendant's request that these letters be destroyed, and sought assurance that they had been destroyed.